If you have lost a loved one, this Complete Guide to Florida Probate will help you understand the steps required to receive your inheritance. “Probate” is the legal process to transfer property from a deceased person to the living people who are legally entitled to receive it. The 2021 Florida Probate Rules, documented here, determine who may receive inheritances in Florida. This guide explains the entire probate process in Florida including: (1) which assets are required to go through probate, (2) who is entitled to receive those assets, and (3) what steps are required to transfer those assets. To get answers to specific questions about your Florida probate case, click here, or call (352) 354-2654.

Table of Contents – The Complete Guide to Florida Probate

  1. What is Probate?

A Gainesville FL guardianship attorney at Florida Probate Law Group can advise you about your specific guardianship matter. Our guardianship attorneys work state wide on a flat fee basis, helping families in every Florida County. Call us at (352) 354-2654 or read more about guardianship below before contacting an attorney:

Our Gainesville FL Guardianship Lawyers are Here for You

Holding HandsWhen a person lacks the capacity to care for themselves or make decisions, Florida law provides a way for their family (or a professional guardian) to be appointed as their legal guardian and to make decisions for the incapacitated person (known as the ward). Depending on the situation, there are different types of guardianship proceedings

A Gainesville FL probate attorney with our firm can answer questions about the estate administration process, call today – (352) 354-2654.

Probate is the process of transferring ownership of a deceased person’s belongings and assets to those people entitled to receive them under Florida law. In a probate case, a judge determines who is entitled to benefit from a decedent’s “estate.” An estate is simply everything a decedent owned when they died. If the deceased person had a will, that document will determine who receives what share of the estate. If the decedent died without a will (intestate), the estate will go to the decedent’s closest relatives (see “intestate succession” rules here).

In Florida, there are two different types of probate; formal administration and summary administration.

Bo Diddley
Bo Diddley was an American music icon that inspired the likes of the Beatles and the Rolling Stones. While Bo’s original sound left an indelible mark on contemporary music, he struggled to find mainstream recognition for his contributions during his lifetime, sometimes feeling victimized by the 1950’s record companies that embraced his style but repackaged it for white audiences. Rolling Stone has written about Bo being copied by the King himself, and the Smithsonian proclaims that “Bo Diddley’s beat changed the course of rock music.”

His pioneering sound led Bo to become the first black artist featured on the Ed Sullivan Show in 1955, where he defied executives and played an original song instead of the cover song they had slated for him.

Bo was never invited back to the Ed Sullivan show but continued to rule the stage until suffering a stroke in 2007. Bo passed away in 2008 at the age of 79 leaving a big family and even bigger legacy. While not always recognized as an originator of rock music, his heavy influence on the genre is undeniable. What Bo may lack in name recognition he more than made up for in boldness and originality.

Boy with Broken Arm
Florida courts have recently become strict regarding the enforcement of court approval requirements for global settlements involving minors in Florida. At Florida Probate Law Group, we make sure probate and guardianship issues do not delay settlements for injury firms. Most injury attorneys know that a child injury settlement over fifteen thousand dollars triggers Florida’s complex court approval statutory scheme (see our flowchart here). However, many are unaware that ANY settlement benefiting a child, no matter the value, requires court approval when paid as part of a global settlement with a total gross value of fifty-thousand dollars ($50,000.00) or more.

Allen v. Montalvan

As explained by Florida’s 4th DCA in Allen v. Montalvan, Florida’s statutory scheme regarding court approval of child settlements is activated when a total global settlement reaches the threshold of $50,000.00, regardless of the amount apportioned to the minor:

For disabled clients, asset sensitive programs such as Medicaid and SSI can be lifelines providing thousands of dollars in assistance per month. When benefits are lost after a settlement, medical and living expenses that were previously covered by the government quickly drain the client’s bank account, negating the benefit of their settlement.

Social Security
Fortunately, federal law (42 U.S.C. § 1396p(d)(4)(A)) allows for the creation of a Special Needs Trust to hold settlement funds for the client’s benefit, while allowing the client to maintain eligibility for asset sensitive programs. Funds placed into a Special Needs Trust (A.K.A. Supplemental Needs Trust) are able to be used for travel, recreation, luxury items, and therapies not covered by the client’s government benefits. For more details on creating a Special Needs Trust, see our blog article here.

The creation of a Florida special needs trust is essential to protecting the interests of a disabled client who is benefiting from an asset sensitive program. However, some government benefit programs are not asset sensitive. In Florida, many children benefit from “Family-Related Medicaid.” Family Related Medicaid is not asset based, thus children on this program can receive assets without jeopardizing their benefits (subject to Florida’s court approval scheme). Likewise, MediCARE is not subject to an asset limit, although Medicare beneficiaries receiving settlements should be counseled about the prudence of a Medicare Set Aside.

ERISA Logo

ERISA liens on child settlements are not always required to be paid, and our firm is here to help. At Florida Probate Law Group, we strive to deliver child injury settlements free from unnecessary liens in order to maximize your client’s recovery. Burdensome ERISA liens in child injury cases are vulnerable to being negated through settlement apportionment during the local court approval process. Federal courts have recognized the authority of state probate courts to protect child injury settlement funds, even when healthcare providers argued lien preemption based on strong subrogation language within the subject ERISA plan. See In The Matter of the Guardianship of O. D. v. The Ashley Healthcare Plan, No. 3:2011cv00146 – Document 17 (N.D. Miss. 2013); Bauhaus USA, Inc. v. Copeland, 2001 WL 1524373 (N.D. Miss. Mar. 9, 2001).

Healthcare providers seeking to enforce liens in federal court have even been forced to pay attorney’s fees after having their actions dismissed. In 2015, the Mississippi Supreme Court allowed attorney’s fees to be levied against a healthcare provider for their frivolous federal action to enforce an ERISA lien that had been negated by the local probate court. In the Matter of the GUARDIANSHIP of O.D., A Minor: Ashley Healthcare Plan v. Michael DILLARD and Kimberly Dillard, 177 So.3d 175 (2015). The thought of a healthcare provider seeking enforcement of an ERISA lien in federal court, only to wind up with an bill for the defendant’s attorney’s fees, will give pause to future lien holders in the same scenario.

Injured children and their attorneys should be encouraged by the limitation of ERISA preemption by federal courts. State probate courts wield the power to diminish or erase ERISA liens in child injury cases. In the court approval phase of a child injury case, Florida Probate Law Group will always seek an order apportioning the minor’s settlement to the maximum advantage of the minor. Our firm works statewide, on a flat fee basis, with no fees or costs up front. Click here for a breakdown of child injury rules in Florida. Should you have a question about a specific case, call (352) 354-2654 or email cdavid@floridaprobatelawgroup.com.

Special needs trusts for injury settlements can be a life saver for your clients. Recipients of need based government benefits require special consideration when receiving settlements in personal injury cases. A sudden influx of cash will leave a Medicaid/SSI recipient ineligible for benefits, resulting in a quick evaporation of their settlement funds as medical treatments and services previously paid by the state are now paid directly from the client’s pocket. However, a Special Needs Trust (AKA Supplemental Needs Trust) can be a Medicaid beneficiary’s best friend, avoiding the scenario described above. Funds placed into a Special Needs Trust are not countable assets for government benefit eligibility. Thus, a client may place their settlement funds into a Special Needs Trust, and maintain government benefits. Trust funds may be used for extra services and luxuries not provided for by Mediciad and SSI. Trust funds may NOT be used for food, shelter, property taxes, fuel, or utilities.

Special Needs Trusts for Injury Settlements – Eligibility

MedicaidFor an individual to be eligible for a special needs trust in Florida, they must be under 65 years old and disabled as defined in as defined in section 1614(a)(3) of the Social Security Act. For clients over the age of 65, a Pooled Trust under 42 USC 1396p(d)(4)(c) is appropriate. Here, we will address trusts for individuals under 65 funded through a personal injury settlement. In considering whether a client is disabled, the Social Security Act informs us that disabled means “unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months.” Fortunately, this determination has already been made is most cases. Any client receiving SSI benefits in Florida has been determined as disabled under this definition.

PiggybankChild settlements requiring a guardian ad litem in Florida can slow down the resolution of a case, however it is possible to have this requirement waived. In many child injury claims, it is within the court’s power to require a guardian ad litem to submit an opinion on the adequacy of a proposed settlement. While the intention of this rule is good, securing a GAL report may be redundant and can sometimes be avoided. Although Florida Statute section 744.3025(1)(b) provides that a guardian ad litem (GAL) is to be appointed when a minor’s settlement equals or exceeds $50,000.00, section 744.3025(1)(e) dispenses of the requirement if a guardian of the minor is appointed and the guardian has no potential adverse interest.

Because minor settlements netting more than $15,000.00 to the minor already require a guardian of the property (a different role than a GAL) to be appointed, the exception contained in section 744.3025(1)(e) is applicable more often than not. Section 744.3025(1)(e) reads as follows: “A court need not appoint a guardian ad litem for the minor if a guardian of the minor has previously been appointed and that guardian has no potential adverse interest to the minor. A court may appoint a guardian ad litem if the court believes a guardian ad litem is necessary to protect the interests of the minor.”

Thus, when a guardian of the property with no adverse interest to the minor is appointed to facilitate the settlement, the court may waive the requirement for a GAL.

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